IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AWKA JUDICIAL DIVISION

HOLDEN AT AWKA

BEFORE HIS LORDSHIP HON. JUSTICE J.I. TARGEMA, PhD

 

DATE:  JULY 23, 2024                              

SUIT NO: NICN/AWK/13/2023

 

 

BETWEEN

Nigeria Social Insurance Trust

Fund Management                                                              -           Claimant/Applicant

 

AND

Holy Rosary Specialist Hospital & Maternity    -           Respondent/Defendant

 

 

REPRESENTATION

Adaeze Mbakwefor the Applicant.

No legal representation for the Respondent

RULING

INTRODUCTION

1.      The Applicant’s motion on notice brought pursuant to Order 13 Rule 5 of National Industrial Court of Nigeria (NICN) (Civil Procedure) Rules 2017 (NICN Rules 2017) and under the inherent jurisdiction of this Honourable Court praying the Court for an order of this Honourable Court correcting the name of the defendant/respondent from “Holy Rosary Specialist Hospital & Maternity” to read “The Registered Trustee of the Roman Catholic Mission of the Archdiocese of Onitsha doing Business under name and Style of Holy Rosary Specialist Hospital & Maternity.” And order deeming the name of the defendant in all the processes already filed corrected to read “The Registered Trustee of the Roman Catholic Mission of the Archdiocese of Onitsha doing Business under name and Style of Holy Rosary Specialist Hospital & Maternity.” And for such further order(s) as this court may deem fit to make in the circumstances of the case.

 

2.      The grounds upon which the application is brought are:

1.      The claimant sued the defendant in the name of Holy Rosary Specialist Hospital & Maternity.

2.      That the defendant had always referred to itself as Holy Rosary Specialist Hospital & Maternity.

3.      The defendant in his counter affidavit which filed and served on us, has now revealed the real name of the defendant as “The Registered Trustee of the Roman Catholic Mission of the Archdiocese of Onitsha doing Business under name and Style of Holy Rosary Specialist Hospital & Maternity.”

4.      That the defendant is the actual person who is intended to be sued.

5.      This application is brought to correct the misnomer in the name of the defendant.

 

3.      The applicant’s motion on notice is supported by an affidavit of five (5) paragraphs and accompanied by a written address. The defendant distilled a sole issue for determination by this Court, to wit: whether the claimant/applicant is entitled to relief sought.

 

APPLICANT’S SUBMISSIONS

4.      In her written address, the Applicant argued that the crux of this application is to correct the name of the defendant to read appropriate name; that the claimant while instituting this action, sued the defendant as “Holy Rosary Hospital & Maternity”; that when the defendant filed his response to the claimant’s originating process, he raised an issue that the defendant was sued in the wrong capacity and that the Hospital is owned by the Catholic Faithful of Onitsha, hence this application; that in an application of this nature, what the applicant needs to establish is that the defendant is the actual or real person intended to be sued but he was sued in a wrong name. in paragraph 3 of the affidavit supporting this application it is stated that defendant was sued in a wrong name and that the correct name of the defendant is “The Registered Trustee of the Roman Catholic Mission of the Archdiocese of Onitsha doing Business under name and Style of Holy Rosary Specialist Hospital & Maternity.”

 

5.      The applicant submitted that where a defendant is sued in a wrong name or an incorrect name, this Honourable Court upon the application made by the concerned party may correct the name of the defendant. See Order 13 Rule 5 of the National Industrial Court Rules which provides as follows:

“where a name of a party has been incorrectly stated, the judge of the court may upon application order a correction of such name on any terms as may be just”

See Guaranty Trust Bank Plc v. Pico Projects Services Ltd (2023) LPELR-60886 (CA) the Court of Appeal citing the Supreme Court held that it is a curable misnomer where both parties are familiar with the identity of the person suing or being sued. The court stated thus:

“Appellant is seeking to attach the jurisdiction of the lower Court on the grounds that the respondent sued a non-juristic person, thus there is a feature which prevents the Court from exercising jurisdiction since the Court can only exercise jurisdiction over persons with capacity, that is who can sue and be sued such as natural persons without any debilitating factors and juristic persons-artificial entities granted legal personality/ability to sue and be sued by law, usually through incorporation. I however disagree with the Appellant’s counsel. What transpired before the lower court and maintained here in line with the principle to the effect that parties cannot unilaterally change the way parties are stated in a Court process is a simple case of misnomer, which is not capable of robbing either the lower Court or this Court of jurisdiction to hear the matter. The Supreme Court in the case of Calabar Municipal Govt & ors v. Honesty & ors (2021) LPELR-58391 (SC) (Pp 24-24 Paras A-F) per Tijani abubakar, JSC gave a comprehensive exposition on misnomer thus: ‘let me address what constitutes a misnomer. Misnomer occurs where the appropriate party is brought to Court but the processes reflect wrong name of the appropriate party. This Court in Registered Trustees of Airline Operators of Nigeria v. Nama (2014) LPELR-22372 (sc) per my learned brother Okoro, JSC held as follows: ‘A misnomer can be said to be a mistake in name, i.e. giving incorrect name to person in the writ of summons. It occurs when a mistake is made as to the name of a person who sued or was sued or when an action is brought by or against the wrong name of a person. In Emespo J. Continental Ltd v. Corona S. &Co. (2006) 11 NWLR (Pt. 991) 365, this Court held that a misnomer occurs when the correct person is brought to court in a wrong name.’ From the above decision of this court therefore, a misnomer occurs when the correct party is brought to court under a wrong name. in my humble understanding therefore, a misnomer occurs where a person clothed with juristic personality sues or is sued but there is mistake in stating the correct name of the party.’ The Apex Court clearly stated when misnomer would vitiate proceedings, that is where there is a clear misapprehension as to parties who is being sued and when a wrong person is sued. In the case of Registered Trustees of the Airline Operators of Nig. v. Nama (Pp21-21 Paras A-c) (2014) LPELR-22372 (SC) the Apex Court per John Inyang Okoro, JSC stated thus: ‘ Let me state emphatically here that when both parties are quite familiar with the entity envisaged in a writ of summons and could not have been misled or have any real doubt or misgiving  as to the identity of the person suing or being sued, then there can be no problem of mistaken identity to justify a striking out of the action. A misnomer that will vitiate the proceedings would be such that will cause reasonable doubt as to the identity of the person intending to sue or be sued.’ See Abikoye v. Abikoye (2022) LPELR-58779 (CA); Yohanna & ors v. Gabriel & ors (2020) LPELR-49948 (CA); and Jaji v. Kwara State Town Planning Authority & anor (2022) LPELR-58801 (CA). this Court faced a similar situation in the case of Keystone Bank Ltd v. Okefe (2014) LPELR-22633 (CA) (Pp 23-24 Paras D-C) where it held per Oyebisi Folayemi Omoleye, JCA thus: ‘A misnomer occurs when the correct person is brought to Court under a wrong name. The pertinent poser here is, whether the error on the part of the respondent is a mistake as to the identity of the appellant? The learned trial judge held that the mistake is not as to the identity of the appellant. That even the appellant itself used the same caption which they have now turned around to oppose. What is more, both parties have, at different time the trial Court, used Bank PHB (Platinum Habib Bank Plc and Bank PHB Plc interchangeably. The law is trite that a mistake as to identity is definitely not a misnomer. In the case of Emespo J. Continental Ltd v. Corona S. & Co. (2006) 11 NWLR (Pt. 991) 365, this court held that, a mistake as to name only is a misnomer, whereas an error as to identity of a party is not a misnomer. See also the cases of Njoku v. UAC Foods (1999) 12 NWLR (Pt. 632) p. 557 at p. 564, paras B-C and Bajaga v. Govt. FRN (2008) 1 NWLR (Pt. 1069) p. 85 at pgs. 126-127, paras G-A. In the case of Njoku v. UAC Foods (supra) this Court equally held that a misnomer is a mistake in name, it occurs when there is a mistake as to the name of a party who sued or when an action is instituted by or against the wrong name of the party. In other words when a correct person is taken to court under a wrong or an incorrect name is given to a party in an action, this is purely a misnomer. There is no doubt that Guaranty Trust Bank Plc was a popular Bank that operated in Nigeria for many years and entered contractual relations with the respondents. As part of its restructuring, it recently re-invented itself as Guaranty Trust Bank Limited as part of a Holding Company known as Guaranty Trust Holding Company Plc. The reasons for such reorganization is outside the realm of this judgment, but suffice it to say that there cannot be any doubt that Guaranty Trust Bank was fully aware of this, which is why they defend the action and continued to appear till date. The fact that the respondent referred to the respondent as “Plc” instead of “Ltd” is a mere misnomer that is not capable of vitiating the otherwise properly conducted trial.” Per Tukur, JCA (Pp. 10-15. Paras F-E)

That considering the above statutory and judicial authorities cited, the applicant submitted that he is entitled to the relief sought and urged the Court to hold so.

6.      In conclusion, the applicant submitted that this application entails is (sic) to correct the name of the defendant to read the actual name. the defendant is the intended to be sued but was sued in a wrong name. the applicant urged the court to resolve the issue formulated in his favour.

 

THE DEFENDANT’S/RESPONDENT’S SUBMISSIONS

7.      In reaction, the defendant/respondent filed a counter affidavit of 11 paragraphs deposed to by Goodluck Akalefu in opposition to Applicant’s application.

 

8.      The defendant/respondent in his written address in support of counter affidavit to the motion dated 14^th February 2024 submitted that a court will not grant an application for amendment where such will amount to introduction of new parties and issues. The defendant/respondent cited the case of Ibrahim v. The Chairman, Kachia Local Govt (1998) 4 NWLR (Pt. 546) 470. That in the present case, the switch from Holy Rosary Specialist Hospital and Maternity to “Incorporated Trustees of Catholic Archdiocese of Onitsha, doing business under the Name and Style of Holy Rosary Specialist Hospital and Maternity” will amount to introduction of new parties and pre and post suit issues. The defendant/respondent urged the court to refuse the application.

 

COURT’S DECISION

9.      I have carefully considered the submissions of counsel in this application. I have also considered the authorities cited by the parties in support of their respective addresses. I am of the considered view that the claimant/applicant’s challenge is with respect to the mistake in the actual name of defendant in this suit. The law is trite that a mistake as to identity is definitely not a misnomer. A misnomer is a mistake in name and it occurs when there is a mistake as to the name of a person who sued or was sued or when an action is instituted by or against the wrong name of a party. In other words when a correct person is taken to Court under a wrong or incorrect name is given to a party in an action, this is purely a misnomer. I so hold. See Keystone Bank Plc v. Okefe (2014) LPELR-22633 (CA)if nobody is misled and the identity of the defendant remains constant, whether or not the correction is effected. It is just a misnomer. And since correction of a misnomer is a specie of amendment, it could be granted at any time, provided no injustice is occasioned the other side. SeeThe Registered Trustees of International Secondary School, Orlu & anor v. Bicoz Oil Company Nigeria Ltd & ors (2014) LPELR-22836 (ca) 35-36, E-D. In my considered view, the name of a party can even be amended on appeal. I see some merit in the claimant’s application. Same is hereby granted as prayed in the interest of justice.

10. Ruling is entered accordingly.

 

 

Hon. Justice J.I. Targema, PhD